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Trowbridge v. Woods

United States District Court, W.D. Michigan, Northern Division

February 28, 2019

ALAN STARR TROWBRIDGE, Petitioner,
v.
JEFFREY WOODS, Respondent.

          HON. GORDON J. QUIST JUDGE.

          REPORT AND RECOMMENDATION

          TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE.

         Petitioner Alan Starr Trowbridge filed this petition for writ of habeas corpus challenging his jury conviction for three counts of first-degree criminal sexual conduct.[1] Petitioner was sentenced to three terms of life in prison without the possibility of parole. The respondent has filed an answer and has complied with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts. The parties have briefed the issues and the matter is now ready for decision.

         Petitioner alleges that:

I. Petitioner was denied his federal constitutional right to the effective assistance of counsel when counsel erroneously told the Petitioner that the Michigan sentencing guidelines applied to his case when in fact the charge carried a mandatory penalty of non-paroleable life. Said error resulted in no plea offer being timely accepted, and Petitioner was denied his right to effective counsel as required in the Lafler decision and in violation of the VI and XIV Amendment of the Constitution of the United States.

         The factual circumstances are mostly undisputed. Petitioner was convicted on August 12, 2010, by a Grand Traverse County jury of three counts of first degree criminal sexual conduct. At the final pretrial conference on July 30, 2010, Petitioner was offered a plea deal that would impose a maximum 22 ½ year term of imprisonment if he pleaded guilty to two counts of third degree criminal sexual conduct and as a habitual offender. Petitioner rejected the offer. On August 9, 2010, the government offered a deal for Petitioner to plead no contest to three counts of third degree criminal sexual conduct with a maximum sentence of 15 years imprisonment. Petitioner accepted that deal, but the trial court judge refused to consider the plea because it violated his policy of accepting plea deals after the pretrial conference date and accepting a no contest plea.

         It is undisputed that neither the prosecutor, the trial judge, nor defense counsel were aware that Petitioner was facing mandatory lifetime sentences without parole if he was convicted of first degree criminal sexual conduct. In denying the motion after remand, the trial court stated: “[Defense counsel] just missed it and did not know about the statute that has a mandatory minimum for these circumstances. In fairness . . . I don't think the People knew about it either. And, I did not know about it until we stumbled on it a few days before sentencing.”[2] (ECF No. 10-12, PageID.1225). Prior to trial, defense counsel informed Petitioner that he would likely lose at trial based upon the evidence against him, but that he would receive a sentence that allowed for parole. Defense counsel informed Petitioner that it was likely that he would have to serve close to his maximum sentence before he was considered for parole. It was not until after trial that Petitioner was informed of the penalties he faced for conviction of the crime charged.

         Petitioner learned at sentencing that his conviction required mandatory life imprisonment without parole. The trial judge sentenced Petitioner to three terms of life imprisonment without parole. Petitioner appealed his conviction to the Michigan Court of Appeals. The Michigan Court of Appeals remanded for an evidentiary hearing on the issue of ineffective assistance of counsel. The trial court denied Petitioner's claim of ineffective assistance of counsel finding no prejudice. The trial judge explained:

But, in any event, in this case it appears to me almost certain that the defendant would have made the same decision had he known about the mandatory life sentence. My reason for that conclusion is that the defendant was advised that the likely guidelines which deal with the minimum would be on the order of 285 months plus 25 percent for the habitual offender, which is pretty close to the 30 years that were the actual guidelines as we scored them, that's basically 30 years. So even without a departure the minimum sentence would have been on the order of 30 years. And, of course, Mr. Hartman did advise Mr. Trowbridge that for a substantial and compelling reason the judge could depart, and having a prior sex offense with a small child when you just have been convicted of another sex offense with a small child is a great big departure -- obvious departure possibility, and likelihood. But, in any event, even without a departure the minimum sentence would be on the order of 30 years.
Under the rules of People versus Tanner, the maximum sentence would have to be at least 45 years, and likely would have been set much higher because the two-thirds rule is not a binding rule it just says the minimum has to be no more than two-thirds of the maximum. If the minimum is 30 years then the maximum has to be at least 45, which means the defendant would be 74 years old when the maximum arrives under best circumstances. And, of course, Mr. Hartman did testify he advised all his CSC clients, and this defendant specifically, that usually the people in prison for CSC conducts are held to near their maximum. So best case scenario is he gets out around 74. And, if the judge chooses, as I undoubtedly would have, instead of 45 the minimum the smallest maximum sentence permitted by law, I could have and would likely have said 60 or 80 or something that would clearly be beyond his natural life so the parole board had that possibility. But, best case scenario is 74, and of course that could very well, as Mr. Hartman advised defendant, I could very well have departed above guidelines given the sex offense of the very similar type. He took the risk under bad advice he received, he took the risk of conviction that amounts to a life sentence. Had he known it was mandatory life I suggest to you with the dynamics of the decision there is very little difference. The decision would very likely have been the same, and is reasonably probable, therefore that decision would not have been different had he been properly advised. It is not reasonably probable that he would have accepted the plea at final conference.

(ECF No. 10-12, PageID.1336-1337). The Michigan Court of Appeals concluded that although counsel failed to properly advise Petitioner that he was facing mandatory life without parole, Petitioner suffered no prejudice because he failed to show that he would have accepted the July 30, 2010, plea offer even if he had known that he would receive mandatory life without parole sentences if he lost at trial. The Michigan Supreme Court denied leave to appeal in a standard order.[3]

         In April of 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) became effective. Because this petition was filed after the effective date of the AEDPA, this Court must follow the standard of review established in that statute. Pursuant to the AEDPA, an application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d).

         The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This provision marks a “significant change” and prevents the district court from looking to lower federal court decisions in determining whether the state decision is contrary to, or an unreasonable application of, clearly established federal law. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). To justify a grant of habeas corpus relief under this provision of the AEDPA, a federal court must find a violation of law “clearly established” by holdings of the Supreme Court, as opposed to its dicta, as of the time of the relevant state court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000). The Supreme Court held that a decision of the state court is “contrary to” such clearly established federal law “if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.” Id. A state court decision will be deemed an “unreasonable application” of clearly established federal law “if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. A federal habeas court may not find a state adjudication to be “unreasonable” “simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 412. Rather, the application must also be “unreasonable.” Id. Further, the habeas court should not transform the inquiry into a subjective one by inquiring whether all reasonable jurists would agree that the application by the state court was unreasonable. Id. at 410 (disavowing Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996)). Rather, the issue is whether the state court's application of clearly established federal law is “objectively unreasonable.” Williams, 529 U.S. at 409.

         The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). The habeas corpus statute has long provided that the factual findings of the state courts, made after a hearing, are entitled to a presumption of correctness. This presumption has always been accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989), cert. denied, 495 U.S. 961 (1990). Under the AEDPA, a determination of a factual issue made by a state court is presumed to be correct. The petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998), cert. denied, 527 U.S. 1040 (1999).

         The Michigan Court of Appeals summarized the facts of this case:

In 2010, defendant was arrested and charged with five counts of CSC I after his six-year-old daughter disclosed that defendant had inserted his penis into her vagina, mouth, and anus. [fn. two charges were dismissed at trial when the victim failed to testify about them]. Prior to this arrest, defendant had previously pleaded guilty to fourth-degree CSC for an incident involving a five-year-old boy. Because of this prior conviction, defendant faced a mandatory sentence of life without possibility of parole if convicted of CSC I. MCL 750.520b(2)(c), as amended by 2006 PA 165 and 2006 PA 169. The charging documents, however, did not mention the mandatory sentence of life without parole. Neither the parties nor the trial court were aware of the mandatory sentence provision until after the conclusion of defendant's trial.
Before trial, the prosecution made several plea offers to defendant. In May 2010, the prosecution offered to allow defendant to plead guilty to one count of CSC I. Defendant rejected that offer and, on July 30, 2010, at a final pretrial, the prosecution offered a plea agreement allowing defendant to plead guilty to two counts of third-degree CSC as a second offender. Defendant rejected this offer as well. On the first day of trial, August 9, 2010, the parties informed the court they had reached a plea agreement for defendant to plead no contest to three counts of third-degree CSC with no habitual offender enhancement. The trial court ruled it would not waive its policy of not entertaining a plea to a reduced charge after the final pretrial.
At the conclusion of defendant's trial, the jury found defendant guilty of all three charged counts of CSC I submitted to them. At sentencing, the trial court judge informed the parties that he had discovered that MCL 750.520b(2)(c) mandated that defendant be sentenced to life without parole for all three counts of first-degree CSC. Defendant moved to adjourn the sentencing to brief the effect of lack of notice to defendant of the mandatory sentence. At the next hearing, the trial court sentenced defendant to three terms of life without parole.
Following sentencing, defendant appealed to this Court and moved to remand to the trial court for an evidentiary hearing to make a record regarding his claim of ineffective assistance of counsel, which this Court granted. At the evidentiary hearing in the trial court, defendant's trial counsel testified that he was unaware that defendant was facing a mandatory sentence of life without parole until the original sentencing date and that he had advised defendant throughout the plea bargaining process about potential sentences using the sentencing guidelines. Trial counsel further testified that he told defendant that his chances of succeeding at trial were “three to five percent” and that, if he was convicted, defendant faced a minimum prison sentence of thirty years and a maximum sentence that could exceed natural life. Trial counsel also testified that he told defendant that sex offenders typically serve close to their maximum sentence and are rarely paroled early. Trial counsel also testified that in his opinion, if defendant were aware he would be sentenced to life without parole if convicted at trial, defendant would have accepted the final pretrial offer if counsel had recommended it. Defense counsel did not say whether he recommended that defendant accept the July 30 plea offer and acknowledged it was defendant's choice to proceed to trial. Defense counsel further testified he did not know whether defendant would have pleaded guilty rather than no contest under the plea offer made the first day of trial if the trial court had waived the plea cut-off date but would not accept a no-contest plea.

Michigan Court of Appeals decision (ECF No. 10-15, PageID.1354-1355) (footnotes omitted).

         Petitioner claims that his federal constitutional right to effective assistance of counsel was denied by his counsel's failure to notify him of the mandatory penalty of life without parole. In Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court established a two-prong test by which to evaluate claims of ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, the petitioner must prove: (1) that counsel's performance fell below an objective standard of ...


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